Saturday, July 28, 2012


That State’s legislature has just passed a Statute of Limitations (SOLs) extension. See here for an article about it.

As with so much SO Mania legislation, it was slyly passed by an untraceable voice-vote after the Rules were suspended. Thus no pol can be skewered in the media by Victimist advocacies for voting against victims (or for sex-offenders, as it might be put) while – in a neat balance – no pol can be personally held responsible for the troubles and consequences the law might or probably-will create.

What sort of laws can these be that the legislators so often don’t want to be individually associated with them? I think many legislators have already figured out that these Mania laws are not really good examples of competent and conscientious law-making – but they haven’t got the chops to Just Say No.

And a lot of these pols have been to law school and are card-carrying attorneys-at-law.

I recall that in his 1969 book The End of Liberalism the sociologist Theodore Lowi observed – with an acuity that has only been proven even more powerful and devastating in the ensuing decades – that ‘interest group liberalism’ (where the pols let the ‘interest-groups’ write the laws they want) is utterly antithetical to any established and stable Rule of Law. Because it leads to what I would call ‘deal politics’ and in such politics the last thing the pols want – Lowi observes – is a solid wall of laws and the Rule of Law, which will only serve to obstruct the ‘flexibility’ they want and need to cut their deals with this and that ‘interest-group’.

And, as I have said before on this site, the interest-groups Lowi knew forty-plus years ago (business, labor, and ‘the farmers’) have since been joined by the Identities erected especially by Radical-Feminism and Victimism, which I call Level 4 Advocacies: seeking to bypass any genuine democratic deliberation by the Citizens or by the pols, and instead manipulating public opinion with false and selective information and with horror-stories while also seducing the pols into this and that ‘deal’ (i.e., you give us this law, and we’ll tell our particular issue-group or Identity that you’re reliable on this single-issue of ours).

So if you are wondering when the Rule of Law in this country really started to get kicked to the curb, you have to go back beyond ‘Bush/Cheney’ to 1969 and then to 1990 when the cadres of  ‘governance feminism’ and Victimism realized they were heading for the Beltway bigtime with the coming of the Clintons.

And the whole thing was being lubricated philosophically by Richard Rorty’s witless but very useful insistence that there is no reality anyway, but instead just different ways of naming stuff; which Democratic uber-thinker George Lakoff is now pushing as a full-blown election and governance strategy: there is nothing but ‘framing’ and ‘spin’ and the only task of politics (and politicians) is to come up with the best ‘framing’ by which to ‘spin’ the public (about what they have already made up their mind to pass into law anyway).*

In precisely the type of dangerous practice that Lowi warned about in 1969, this law was written with the input (a lot of it, I bet) of a tort-attorney who has made quite a bit of money representing ‘victims’ in lawsuits about allegations that happened in the long-ago. The fox is allowed to develop the blueprints for the hen-house.

But the said fox pronounces himself very unhappy because the law doesn’t go far enough (he had been pushing for an almost total-eradication of any SOLs at all). But that doesn’t mean he won’t take what he’s been given here – and neatly he is on record both ways, and can have his legal cake and eat it too.

See here for the text of this Bill, H.4329.

So now (Sec. 2) anybody wishing to start a lawsuit has 25 years from the date of the alleged incident or to the age of 43 (if the allegation involves child-sexual abuse). Or within three years “after the date upon which such cause of action accrued, whichever is later”.

This last bit is a sly doozy: to “accrue” in legal usage means that date upon which the claimant knew or should have known that s/he has somehow been injured or had a tort of any sort committed against him/her; and tort-attorneys can go to town making the case as to how the allegant couldn’t have known until … just recently. (Perhaps the enterprising attorney might also toss in that the allegant didn’t develop the ‘heroic courage’ to come forward until just recently.) So it’s entirely possible that one way or another the SOLs have for all practical purposes been almost-completely gutted.

But that’s not all. While ‘private’ institutions or charities can be sued within this time-frame, yet if you want to file a claim against a public employer you only have nine months (Sec. 1).

Two thoughts come to mind.

First, imagine that the legislature passed a law giving allegants all those years to file a claim of abuse against a public institution (a school, say) but only nine months against a private institution or charity (the Church, say). What would you think about such a law? And can you imagine the outcry by public-employee unions?

But this is precisely the dynamic in play here. For a law that is supposed to be concerned for the ‘prevention of child sexual abuse’, the entire realm of public-institutions are almost entirely exempted. While private institutions or charities are rendered vulnerable to a window of vulnerability almost completely bereft of SOLs.

Second, what sort of mentality or Stance is driving legislators to make such an obviously selective law? I would say that clearly the pols are not letting themselves be ‘obstructed’ by any concern for the integrity of any genuine Rule of Law. Rather, they are making a deal-politics type of law: they can keep the Victimists happy while not enraging the demographically powerful public-employee unions. (Although since just recently a 55-year old man just started a lawsuit against Harvard for abuse by a swim-coach that allegedly occurred while the man was a student there decades ago, it remains to be seen how the hefty elite University-demographic is going to respond to all of this.)

But those aren’t the only holes in the wall in this Bill.

In Sec. 5(c) any aspiring plaintiff can file a certificate of merit to bring a case from the long-ago, that includes a notarized declaration by a duly-licensed “mental health professional” who might be “but is not limited to” such practitioners as “psychologists, marriage and family therapists, mental health counselors, or clinical social workers” to the effect that “there is a reasonable basis to believe that the plaintiff was subject to one or more acts of sexual abuse as defined … that would cause emotional or psychological injury or condition”.

Two more thoughts occur.

Who else besides “psychologists, marriage and family therapists, mental health counselors, or clinical social workers” are licensed by that State? This opens the door to pretty much the entire pandemonium of cottage-industry (and perhaps well-intentioned) persons who, with whatever ‘credentials’ (or not), set themselves up to ‘counsel’ anybody claiming or suspecting to have been abused.

For a) a person now in adulthood or b) a child whose personality traits and characteristics are not yet fully describable it has to be asked: just what particular “emotional or psychological injury or condition” can be accurately characterized as having been  ‘caused’ by the act for which the now-adult/then-child now seeks damages? This is the mushy core of so much of Victimist civil-litigation theory. Which, of course, they would very much like you to not-notice, hopefully because you have been stampeded into outraged sympathy by a sufficiently ‘horrific’ story from that long-ago.

The good news in this Bill is that if you are determined to be wrongly accused, you can recover attorney-fees from the plaintiff ( Sec. 5(d)). But to get there it’s not enough to have the jury in the lawsuit decide in your favor. You then have to go to the court and convince a judge that the accusation was made “with no basis in fact and with malicious intent”.

The only unalloyed bit of good news is that none of this will apply if you have already signed an agreement for damages under the guidance of a competent attorney (Sec. 5(e)). Although perhaps even then you might find an attorney willing to argue that your prior attorney was not competent. In tough economic times, who knows?

So there you have it.

You can see where all of this is still going.


*Another major bit of Lakoff’s: the Democrats support a “nurturing” and participatory democratic approach to government, whereas the Republicans represent a “strict father” approach that doesn’t nurture or discuss but simply insists and demands.

But this is hooey and baloney. Advocacy-group and Identity-group politics no longer look for any participatory democratic public deliberation (after all, most of the Citizens still ‘just don’t get it’ so why bother with them?). The ‘nurturing’ bit describes the best-case outcome of the agenda they demand to have erected into laws; but there is to be no risky ‘democratic deliberation’ about how the law itself is to be passed.  You as a Citizen will simply wake up one morning and discover that you are now required to obey a new ‘sensitive and nurturing’ law and the only ‘democratic deliberation’ allowed is to figure out how best to make it work.

But if you democratically disagree about the law itself, then that automatically marks you as ‘insensitive’ and ‘non-nurturing’ – in which case you don’t deserve a say in this ‘democracy’ in the first place anyway. Neat.

No comments:

Post a Comment